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Articles 1 - 30 of 91
Full-Text Articles in Law
The Imperialism Of American Constitutional Law, David Fontana
The Imperialism Of American Constitutional Law, David Fontana
GW Law Faculty Publications & Other Works
This Book Review examines the ways in which comparative constitutional law scholarship has, to this point, been dominated by the same concerns and issues which predominate domestic American constitutional law scholarship.
Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Ricard Levy
Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Ricard Levy
GW Law Faculty Publications & Other Works
Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies. This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …
Responses To The Ten Questions [On National Security Posed By The Journal Of National Security Forum Board Of Editors], Gregory E. Maggs
Responses To The Ten Questions [On National Security Posed By The Journal Of National Security Forum Board Of Editors], Gregory E. Maggs
GW Law Faculty Publications & Other Works
In 2009, the Journal of the National Security Forum Board of Editors posed ten questions on national security to a group of national-security law experts. Contributors were free to answer as many of the ten questions as they wished. All responses were published in a special issue of the William Mitchell Law Review. I answered the following three questions: 3. What are the lessons from detaining non-U.S. citizens, labeled enemy combatants, at Gitmo? 4. What is left for the Supreme Court to decide after the Boumediene decision? 10. What is the most important issue for American national security?
The SSRN …
Book Review Of Jeremy Scahill, Blackwater: The Rise Of The Most Powerful Mercenary Army (2007/2008) And From Mercenaries To Market: The Rise And Regulation Of Private Military Companies (Simon Chesterman & Chia Lehnardt, Eds., 2008), Gregory E. Maggs
GW Law Faculty Publications & Other Works
This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations.
Which Original Meaning Of The Constitution Matters To Justice Thomas?, Gregory E. Maggs
Which Original Meaning Of The Constitution Matters To Justice Thomas?, Gregory E. Maggs
GW Law Faculty Publications & Other Works
This essay was published as part of a symposium hosted by the New York University Journal of Law and Liberty in March 2009. The journal citation is: Gregory E. Maggs, Which Original Meaning Matters to Justice Thomas?, 4 N.Y.U. J. L. & Liberty 494 (2009).
The essay addresses a basic question about Justice Clarence Thomas’s originalist jurisprudence. When Justice Thomas looks for the original meaning of the Constitution, does he seek (a) the meaning intended by the Framers at the Constitutional Convention in Philadelphia (“original intent”), (b) the meaning as understood by the delegates to the thirteen state ratifying conventions …
A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
GW Law Faculty Publications & Other Works
This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457.
Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates …
Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller
Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller
GW Law Faculty Publications & Other Works
We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative …
Ending The Patent Monopoly, Michael B. Abramowicz, John H. Duffy
Ending The Patent Monopoly, Michael B. Abramowicz, John H. Duffy
GW Law Faculty Publications & Other Works
For nearly two centuries, an inventor applying for a U.S. patent has been required to obtain the opinion of an expert who has searched the prior art and determined that the inventor’s application meets the standards of patentability. And for nearly two centuries, those expert opinions could be obtained only from a single office run by the U.S. government. The patenting monopoly, which is almost certainly undesirable, is now being eroded. Rising global trade and technological sophistication have increased the number of patent filings in every country; government patent offices here and abroad are thus being driven to rely on …
A Historical Perspective On Parental Alienation Syndrome And Parental Alienation, Joan S. Meier
A Historical Perspective On Parental Alienation Syndrome And Parental Alienation, Joan S. Meier
GW Law Faculty Publications & Other Works
Claims of parental alienation syndrome (PAS) and parental alienation have come to dominate custody litigation, especially where abuse is alleged. While much psychological and legal literature has critiqued PAS, and leading researchers as well as most professional institutions have renounced the syndrome concept, alienation as a parental behavior or child’s condition continues to be extensively investigated and credited in research and forensic contexts. This article reviews the history of PAS, both as posited by its inventor, Richard Gardner, and as used and applied in courts, suggesting that it not only lacks empirical basis or objective merit, but that it derives …
Professional Malpractice In A World Of Amateurs, Thomas D. Morgan
Professional Malpractice In A World Of Amateurs, Thomas D. Morgan
GW Law Faculty Publications & Other Works
An increasing number of tasks once reserved to lawyers are now being performed by non-lawyers. That reality seems likely to continue. The question then becomes against what standard of performance such “amateur” practice should be assessed. One answer might be that a non-lawyer should be guilty of malpractice if the work is performed below the level of quality to which a lawyer would be held. This paper argues that the work should instead be judged against the standard of performance the non-lawyer purported to be able to deliver.
What Factors Can An Agency Consider In Making A Decision?, Richard J. Pierce Jr
What Factors Can An Agency Consider In Making A Decision?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In State Farm, the Supreme Court said that an agency decision is arbitrary and capricious if the agency did not consider adequately a relevant factor or did consider an impermissible factor. The Court did not indicate how courts should distinguish among three categories of potential decision making factors: mandatory, discretionary but permissible, and impermissible. Until 2007, the case law in both the D.C. Circuit and the Supreme Court addressed these questions in sensible ways. In particular, both courts held consistently that congressional silence with respect to a logically relevant factor rendered the factor a permissible factor that an agency could …
Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel
Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel
GW Law Faculty Publications & Other Works
This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …
Rating The Competition Agencies: What Constitutes Good Performance?, William E. Kovacic
Rating The Competition Agencies: What Constitutes Good Performance?, William E. Kovacic
GW Law Faculty Publications & Other Works
Debates about the U.S. federal competition agencies have revealed a serious need to return to a basic question: what is good performance? Assessments of agency performance are important for many reasons: public perception, the ability to influence legislative actions, judicial decisions to defer, and the morale of current employees. Recent critiques on competition agencies and related commentary have demonstrated a need for better performance standards by begging two basic questions: (1) by what criteria should the performance of competition agencies be judged?; and (2) once the criteria for the agency report card have been set, how should they be applied …
Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic
Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic
GW Law Faculty Publications & Other Works
Cartels often act like single dominant firms. Because there are a number of difficulties in determining market effects of single dominant firms, this article proposes that enforcement policy recognize the connection between cartels and firms engaged in monopolization. The resulting insight would be useful to determine whether or not cartel conduct should be viewed with suspicion when engaged in or by a dominant firm in a similar industry. Many cartels do not focus solely on suppressing interfirm rivalry; rather, many operate as two-stage mechanisms: the first stage consists of reaching a consensus on a plan to restrict output and curb …
The Continuing Pursuit Of Better Practices, William E. Kovacic
The Continuing Pursuit Of Better Practices, William E. Kovacic
GW Law Faculty Publications & Other Works
Due to the approaching 100th anniversary of the statute that gave the FTC life, the FTC conducted a self-assessment to consider what it must do to continue the valuable work it performs and to identify steps it must take to do better in the future. The consultations for the project identified general characteristics of good administration practice the FTC should strive to achieve in the coming years.
Part two of the report discusses various foundations of successful FTC performance and identifies institutional features that beget good substantive outcomes over time. These foundations and features include the agency’s mission, structure, resources, …
Reasonable Provocation And Self-Defense: Recognizing The Distinction Between Act Reasonableness And Emotion Reasonableness, Cynthia Lee
GW Law Faculty Publications & Other Works
This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness …
By Any Means Necessary? The Fcc's Implementation Of Net Neutrality, Dawn C. Nunziato
By Any Means Necessary? The Fcc's Implementation Of Net Neutrality, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Since the Federal Communications Commission (FCC) removed common carriage obligations from Internet cable broadband providers in 2002, free speech and open access advocates have been lamenting the FCC’s market-oriented, laissez-faire approach and have called for net neutrality regulation to remedy the problems brought about by an unregulated market for Internet communications. Such regulation would reimpose some of the common carriage/non-discrimination obligations historically imposed on telecommunications providers and would prohibit broadband providers from censoring, blocking, or otherwise discriminating against any legal content or applications that users sought to communicate via broadband pipes. In August 2008, however, the FCC reversed its laissez-faire …
Making Sense Of Procedural Injury, Richard J. Pierce Jr
Making Sense Of Procedural Injury, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
This essay uses the Supreme Court’s 2009 opinion describing the version of the harmless error rule courts must use in administrative law cases as a point of entry in attempting to understand the Court’s 1992 opinion recognizing that 'procedural rights are special' for standing purposes. It concludes that courts should apply an easy-to-meet plausibility test in determining whether an agency’s refusal to provide a procedure required by statute or by the constitution has a causal relationship with the challenged agency action sufficient to allow the petitioner to obtain review of the action based on a procedural injury theory. Such a …
Perennial Outsiders: The Educational Experience Of Turkish Youth In Germany, Catherine J. Ross
Perennial Outsiders: The Educational Experience Of Turkish Youth In Germany, Catherine J. Ross
GW Law Faculty Publications & Other Works
'When you talk about the debate on Turkey’s E.U. membership,' a German of Turkish origin who serves in the Parliament of the European Union explains, 'it immediately becomes a talk about head-scarf issues and building mosques.' This is in part because Western Europe has long considered itself a 'Christian Club.' The treatment of second-generation Turks in Germany and other European countries offers a window into the obstacles that must be confronted and overcome before Turks gain full equality in Europe. Totaling about four million, persons of Turkish origin make up the largest immigrant group in Europe, and virtually all of …
Unions, Education, And The Future Of Low-Wage Workers, Michael Selmi
Unions, Education, And The Future Of Low-Wage Workers, Michael Selmi
GW Law Faculty Publications & Other Works
Low-wage workers have never had privileged access to desirable labor market opportunities but their position has significantly deteriorated over the last two decades, as union representation has decreased and the demand for higher skilled labor increased. This essay explores the future for low-wage workers and begins by defining what we mean by low-wage work, and also who low-wage workers are. I next explore the two most common advocated paths for improving the lives of low-wage workers: reviving unions and a human capital focus. I suggest that reviving unions, even in the context of the Employee Free Choice Act, offers at …
Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau
Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2008), attempts to identify the key trends and issues for 2009 in U.S. federal procurement. In large part, the paper focuses upon the challenges facing the incoming Obama administration, which faces a number of interrelated, critical, systemic challenges that pervade the acquisition landscape. Federal procurement spending has exploded in this decade. As a result - and, in addition to decisions made during the 1990's - the Government is heavily outsourced, dependent upon contractors to an extent - in degree and in type - that makes many uncomfortable. …
Book Review Of Jeremy Scahill, Blackwater: The Rise Of The Most Powerful Mercenary Army (2007/2008) And From Mercenaries To Market: The Rise And Regulation Of Private Military Companies (Simon Chesterman & Chia Lehnardt, Eds., 2008), Gregory E. Maggs
GW Law Faculty Publications & Other Works
This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations.
Litigating Animal Disputes: A Complete Guide For Lawyers (Introduction), Joan Schaffner, Julie L. Fershtman
Litigating Animal Disputes: A Complete Guide For Lawyers (Introduction), Joan Schaffner, Julie L. Fershtman
GW Law Faculty Publications & Other Works
This chapter introduces the topics discussed throughout the book and describes the development of the field of animal law. Most of the issues pertain to state law, and the introduction notes that the book provides sample documents that practitioners will find useful.
Accidental Incest: Drawing The Line - Or The Curtain? - For Reproductive Technology, Naomi R. Cahn
Accidental Incest: Drawing The Line - Or The Curtain? - For Reproductive Technology, Naomi R. Cahn
GW Law Faculty Publications & Other Works
This article calls for setting limits on the number of offspring born from any one individual's gametes, and for continuing to sanction incest, even when it comes to adult, inter-sibling consensual behaviour. The article examines the issues of inadvertent consanguinity raised by third-party gamete use through a feminist lens on both incest and reproductive technology. The central questions concern regulation of reproductive technology, such as whether legal restrictions on the fertility market might diminish the possibilities of accidental incest, as well as whether criminal and civil sanctions of intrafamilial sexual behavior should apply to relationships created through reproductive technology; these, …
Contraception: Securing Feminism’S Promise, Naomi R. Cahn, June Carbone
Contraception: Securing Feminism’S Promise, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
This paper traces the history of attempts to restrict contraception, the legal events securing widespread access to contraception and their importance to a generation of college-aged women, the short-lived nature of the consensus that produced them, and the potential of the issue to serve as a rallying point for a revitalized feminism. It explores the hypocrisy of a system that, whatever its values, makes reproductive autonomy readily available for the affluent and the sophisticated and increasingly beyond the reach of the most vulnerable. Finally, it considers the potential of contraception as a reframing device, capable of exposing the hypocrisy of …
Criminalizing Humanitarian Intervention, Sean D. Murphy
Criminalizing Humanitarian Intervention, Sean D. Murphy
GW Law Faculty Publications & Other Works
The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention …
The International Legality Of U.S. Military Cross-Border Operations From Afghanistan Into Pakistan, Sean D. Murphy
The International Legality Of U.S. Military Cross-Border Operations From Afghanistan Into Pakistan, Sean D. Murphy
GW Law Faculty Publications & Other Works
To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the "hot pursuit" of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably …
The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis
The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis
GW Law Faculty Publications & Other Works
In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American …
Ecosystem Resilience To Disruptions Linked To Global Climate Change: An Adaptive Approach To Federal Land Management, Robert L. Glicksman
Ecosystem Resilience To Disruptions Linked To Global Climate Change: An Adaptive Approach To Federal Land Management, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Global climate change presents daunting challenges to the federal government’s ability to manage its lands and resources in ways that ensure that the priceless natural heritage that these land and resources comprise remains available in substantially unimpaired condition to both present and future generations of Americans. One of the challenges results from the fact that the laws governing the activities of federal land management agencies have outlasted the scientific assumptions on which those laws were based. In particular, Congress adopted many of those laws on the assumption that ecological systems tend toward a natural equilibrium. Subsequently, the science of ecology …
The Victim-Informed Prosecution Project: A Quasi-Experimental Test Of A Collaborative Model For Cases Of Intimate Partner Violence, Laurie S. Kohn, Laura Bennett Cattaneo, Lisa A. Goodman, Deborah Epstein, Holly A. Zanville
The Victim-Informed Prosecution Project: A Quasi-Experimental Test Of A Collaborative Model For Cases Of Intimate Partner Violence, Laurie S. Kohn, Laura Bennett Cattaneo, Lisa A. Goodman, Deborah Epstein, Holly A. Zanville
GW Law Faculty Publications & Other Works
This Article describes the Victim-Informed Prosecution Project (VIP), a program that, over its 6-year tenure, aimed to amplify the voice of the victim in the handling of interpersonal violence (IPV) prosecutions in Washington, D.C. The Article discusses the rationale for and design and implementation of VIP and then explores whether it increased the victim’s sense of influence over the justice system response. While some VIP services, including legal advocacy and civil protection order representation, were associated with increased perceived victim voice, the program as a whole reflected more limited levels of perceived victim voice in the area of criminal prosecution. …